Zeilin v. Rogers , 10 Sawy. 200 ( 1884 )

Field, Justice.

A new trial must be denied. The testimony of Hall as to his possession of the demanded premises in 1868, after the death of his wife, his delivery of that possession to the defendant, with his intended relinquishment of all interest in them, was admissible to show when the defendant took possession, and also its open and exclusive character. If to it we add the testimony of the defendant himself, given in his own behalf, the adverse character of his possession is well shown, and the finding of the jury is fully justified. More than 10 years had elapsed between the abandonment of Hall' and the entry of the plaintiff thereon, and the commencement of the action, and thus a bar to the plaintiff’s recovery was created, even supposing he had a specific conveyance of Hall’s original interest in the premises as tenant by the curtesy. The deed of Hall to Dell is not set forth in the exceptions, though it is stated therein to be of his “life-interest,” with a special warranty “against himself and those claiming under him.” Hall testified that he never made any claim to the property or any interest therein after he gave possession to the defendant, and in fact did not think ho had any, and so told Dell at the time the latter obtained his deed. It is therefore probable that the deed, in effect, only amounted to a quitclaim,—a relinquishment, merely, of possible rights, instead of a specific conveyance of a certain interest,—a probability -which is much enhanced by the very small consideration given for it. But, treating it as a conveyance of whatever interest Hall then had in the premises, it was too late to affect-the rights acquired by the defendant by means of his 10 years’ exclusive and uninterrupted possession.

It is true, the statute of limitations is not pleaded directly, or in a manner that can be called good pleading. But it is averred in the answer, that neither the plaintiff nor his grantor was seized or possessed of the premises for the statutory period of 10 years prior to the commencement of the action; and also that the defendant was in the exclusive possession of the premises during that period. And it is evident that the defendant relied upon this possession, which was undisturbed, as a defense. A cause of action could not accrue against him in favor of the plaintiff for the recovery of the premises during such possession.

Neither has the plaintiff been in any respect prejudiced in the presentation of his cause by the inartificial manner in which the defendant has stated his defense of the statute. And, if it were necessary, the defendant would be now allowed to amend his answer in this respect. Errors and defects in the form and even the substance of a pleading may, “in the furtherance of justice,” be amended after-verdict, “when the amendment does not substantially change the cause of action or defense by conforming the pleading to the facts proved.” Code Civil Proc. § 99. If the plaintiff was not satisfied to go to trial on this defense, either on account of its form or substance, he .should have objected to it at the proper time, by motion or demurrer.

There was no error in the instructions of the court to the jury. Neither residence upon land nor its inclosure by artificial means is absolutely necessary to create an adverse possession, even where the premises are not claimed under color of title. Either of these circumstances is strong evidence to establish such possession; but it may be shown in other ways. A subjection of the land by the claimant to such uses as it is ordinarily susceptible of, to the exclusion of others, is an adverse possession; and that subjection may appear by its cultivation or occupation for the ordinary'purposes of husbandry or pasturage. The extent of the land to which an adverse possession is claimed must, of course, be clearly indicated, so that others may see and respect it; but it need not be shown by an artificial inclosure. It is to an inclosure of that kind that the instruction asked and the one given in the charge of the court evidently had reference. The former speaks of an adverse possession of land within limits which the defendant actually incloses, “In a settled farming country,” says the judge, “where there are known boundaries to ■claims and possessions, it is sufficient if the occupant exercise ownership over the land.” Other objects than an artificial structure in the nature of fences may mark tiie limits of the possession claimed; such as ravines, water-courses, and the like. And furrows in the field, mounds at short distances apart, and many other devices, not constituting strictly an inelosure, may equally answer the purpose. The subjection of the land to the uses of the claimant, to the exclusion of others, and the identification with reasonable certainty, according to the circumstances of the case, in some visible or appreciable way, of its extent, are tlie material facts necessary to establish the adverse character of the possession. In many decisions an inclosure is spoken of as essential, because the limits of the land in question could only he marked conveniently in that way. But the essential fact is tiie indication, given by the inelosure, of the limit to which the possession claimed extends. None of the authorities deny the equal efficacy with an artificial inelosure of other defined boundaries or means of indicating the limits of a tract to which the possession of an occupant extends. In tlie present case there was evidence tending to show that the premises in controversy claimed by the defendant had been inclosed with a fence more than twenty years, though the inelosure had been renewed eight or nine years previous to the commencement of the action.

The objection that the transfer of Hall’s interest to the defendant was attempted to be shown by parol, was not well taken. The evidence was not offered or received to siiow such transfer,—which could only be done by deed,—-but to prove that Hall abandoned the possession and surrendered it- absolutely to the defendant, who thereupon, entered upon the land and held it adversely.

The refusal to admit the assessment rolls in evidence is so obviously correct as to require no consideration.

Motion for a new trial denied.